HOPE v. VELASCO

The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge

MEMORANDUM OPINION AND ORDER

Edgar Hope, an inmate currently incarcerated at Cook County Jail,
filed this § 1983 complaint against Officers Davis and Perkins and
Captain Turrise for assault, battery, and violation of his Eighth and
Fourteenth Amendment rights; and against Director of the Cook County
Department of Corrections, Ernesto Velasco, in his official capacity
(collectively, "Defendants"), for failing to take steps to prevent such
alleged beatings from occurring. Before this Court is Defendants' Motion
for Summary Judgment, which is based on two grounds: (1) that Hope failed
to exhaust his administrative remedies; and (2) that Defendants are
protected by qualified immunity.

I. FACTS

At the time of the alleged § 1983 violation, Hope was an inmate at
Cook County jail, and Defendants were employed by the Cook County
Department of Corrections ("CCDOC") at that facility. Hope claims that
Officer Perkins attacked him on March 7, 2000, without provocation, while
Hope was on an hour long break outside of his cell, conversing with his
attorney on the telephone. Hope further alleges that Officer Turrise and
Captain Davis joined Officer Perkins in the
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fight, beating, kicking and punching Hope multiple times while holding
him down. Hope states that another inmate, Randall Jarrett, intervened on
his behalf. Hope alleges that the officers inflicted multiple injuries
for which he received medical care.

On approximately March 9 or 10, 2000, Hope and Jarrett filed a detainee
grievance with the CCDOC, requesting an internal investigation and an
investigation by the Federal Bureau of Investigation. The Cook County
Sheriff's Department promptly complied with an internal investigation and
found that "none of the officers or supervisors admitted abusing either
of the two inmates in that they only used force which was necessary to
restrain the inmates and place them in their cells." On April 5, 2000,
after reviewing all documents and statements, the Sheriff's Department
concluded that the allegations brought against the accused were
unfounded. Hope states that the investigation was conducted to his
satisfaction. Instead of appealing the results of the Sheriff's
Department's investigation internally, Hope brought this complaint.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings, depositions, and
other materials in the record show that there is no disputed issue of
material fact and that the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). Summary judgment may be granted when the record as a whole
shows that a rational trier of fact could not find for the non-moving
party. Rogers v. City of Chi., 320 F.3d 748, 752 (7th Cir. 2003). The
non-moving party must make a showing sufficient to establish any
essential element for which he will bear the burden of proof at trial.
Celotex, 477 U.S. at 322-23. The Court considers the evidence in the
light most favorable to the non-moving party and draws all reasonable
inferences in favor of that party. Schneiker v. Fortis Ins. Co.,
200 F.3d 1055, 1057 (7th Cir. 2000).
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III. EXHAUSTION

Defendants assert that Hope's claims should be dismissed because he
failed to exhaust his administrative remedies before filing suit. Hope is
required to exhaust all administrative remedies before filing suit in
federal court under the Prison Litigation Reform Act of 1995 ("PLRA"). In
relevant part, the PLRA provides that "no action shall be brought with
respect to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available
are exhausted." 42 U.S.C. § 1997e(a).

The Seventh Circuit has held that "to exhaust remedies, a prisoner must
file complaints and appeals in the place, and at the time, the prison's
administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025
(7th Cir. 2002). The CCDOC's Detainee Grievance Procedures ("Grievance
Procedures"), which include procedures for appeal, went into effect in
1997. The Grievance Procedures provide that detainees wishing to file a
grievance shall fill out an Inmate Grievance Form and place it in the
designated locked box within 15 days after the alleged grievance
occurred. The grievance must be resolved within 30 days from the date the
grievance was filed. If a detainee wishes to appeal the decision, he or
she has five working days from receipt of the decision to appeal to the
Administrator of Program Services or his designee. All appeal decisions
are final. Pozo, 286 F.3d at 1025. It is uncontested that Hope filed a
timely grievance with the CCDOC, that the CCDOC provided a timely
response to Hope's grievance, and that Hope chose not to file an appeal.
Defendants argue that this failure to file an appeal should result in a
dismissal of Hope's complaint.

In response, Hope makes two arguments. First, Hope argues that because
an appeal is optional under the Grievance Procedures  "if a detainee
wishes to appeal," he was not required to
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appeal in order to exhaust his administrative remedies. Hope misinterprets
the permissive language contained in the Grievance Procedures. The use of
the word "wishes" does not make the appeals process optional for those
who wish to contest the results of the internal investigation; rather, it
distinguishes those who wish to appeal and exhaust their remedies from
those who are either satisfied with the CCDOC's response or choose not to
pursue their claim. The Seventh Circuit has held that in order to exhaust
administrative remedies for the purposes of complying with the PLRA, the
aggrieved detainee must use all steps that the agency makes available,
including the appeals process. Pozo, 286 F.3d at 1025 (emphasis added).
See also Dixon v. Page, 291 F.3d 485, 489 (7th Cir. 2002) (where
grievance procedure allowed prisoners to appeal, prisoner's failure to
appeal denial of relief represented a failure to exhaust). Detainees
cannot selectively participate in the grievance process; instead, they
must use all available avenues of review in order to exhaust. Pozo, 286
F.3d at 1024. If detainees are not satisfied with the CCDOC's response to
their grievance, they must appeal to the CCDOC before bringing their suit
to federal court.

Second, Hope argues that because the CCDOC provided him with the relief
that he sought  an internal investigation  he had no reason to appeal.
In his grievance, Hope requested only an internal investigation of the
events that led to his injuries. The CCDOC conducted the investigation
and concluded that "the allegations . . . being brought against the
accused [are] unfounded." In his affidavit, Hope stated that he was
satisfied that this investigation had been conducted, and Hope argues
that because the investigation was performed to his satisfaction, he had
no reason to appeal the CCDOC decision at the time. However, Hope's
argument that he need not appeal because he was satisfied "that the
investigation was performed" is unavailing. The Supreme Court has held
that under the PLRA, detainees cannot skirt the administrative review
process by strategically structuring
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the relief they seek. Booth v. Churner, 532 U.S. 731, 739 (2001) (stating
that it is "highly implausible that [the PLRA] meant to give prisoners a
strong inducement to skip the administrative process simply by limiting
prayers of relief . . . not offered through administrative grievance
mechanisms"). Because Hope is not satisfied with the conclusions of the
internal investigation, he is required to appeal his grievance internally
before bringing his claim to federal court.

Furthermore, Hope is not exempted from the exhaustion requirement even
though he is only seeking money damages for his injuries. The Supreme
Court has held that "[e] ven when the prisoner seeks relief not available
in grievance proceedings, notably money damages, exhaustion is a
prerequisite to suit." Porter v. Nussle, 534 U.S. 516, 524 (2002). The
results of prison grievance procedures might "affect the quantum of
damages available in litigation." Perez, 182 F.3d at 538. Thus, "[a]n
inmate seeking only money damages must complete a prison administrative
process that could provide some sort of relief," even if not money.
Booth, 532 U.S. at 734. "Some sort of relief' includes:

In some instances, corrective action taken in response
to an inmate's grievance might improve prison
administration and satisfy the inmate, thereby
obviating the need for litigation. In other
instances, the internal review might filter out some
frivolous claims. And for cases ultimately brought to
court, adjudication could be facilitated by an
administrative record that clarifies the contours of
the controversy.

Porter, 534 U.S. at 525 (citing Booth, 532 U.S. at 737). In Hope's case,
the CCDOC appeals process could have provided him with this sort of
non-monetary relief. Had Hope filed an appeal and received no response or
relief, then he could have demonstrated that there was no possibility for
relief. Dixon, 291 F.3d at 491. Hope, however, has failed to demonstrate
that the CCDOC lacked the authority "to provide any relief or to take any
action whatsoever" in response to his appeal. Booth, 532 U.S. at 736.
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In addition, Hope's lawsuit does not fall under a recognized exception
to the exhaustion requirement. The Seventh Circuit has recognized an
exception to the exhaustion requirement where: (1) the administrative
board failed to respond to the prisoner's grievance, Lewis v.
Washington, 300 F.3d 829 (7th Cir. 2002); and (2) no remedy is available
through the administrative process, Perez v. Wisconsin Dept, of
Corrections, 182 F.3d 532, 537-38 (7th Cir. 1999). Hope, however, does
not allege that the CCDOC failed to respond to his grievance or that a
remedy or appeals process was unavailable, insufficient or faulty. He
also does not claim that the grievance process was a sham used to thwart
his good faith attempts to achieve full exhaustion. The Grievance
Procedures, which Hope cites as evidence, indicate that the procedures
became effective in 1997 and include a process for administrative
appeals. In addition, Hope agrees with Defendants that the CCDOC complied
with Hope's request for an investigation in a timely and appropriate
manner. Therefore, Hope's lawsuit must be dismissed for failure to
exhaust his administrative remedies.

IV. SCOPE OF DISMISSAL

"Dismissal for failure to exhaust is without prejudice and so does not
bar the reinstatement of the suit unless it is too late to exhaust."
Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002) (emphasis
added). Because 42 U.S.C. § 1997e(a) prohibits a prisoner from bringing
suit without exhausting state remedies, if exhaustion is no longer
possible then the suit is barred. Robinson v. U.S., Nos. 02-1287,
03-2027, 2003 WL 22598335, at *5 (7th Cir. November 3, 2003). When the
time limits of the internal grievance process have been surpassed,
exhaustion becomes impossible. Id. See also Glisson v. U.S. Forest
Service, 55 F.3d 1325, 1326 (7th Cir. 1995) (case dismissed with
prejudice because it was too late for Glisson to cure problem that had
caused the dismissal by exhausting those remedies since he failed to file
a timely appeal to the Regional Forester). The
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Seventh Circuit has held this defect is a procedural default which must
be dismissed with prejudice. Robinson, 2003 WL 22598335, at *5. In this
case, if Hope wanted to appeal the CCDOC's decision, he had five working
days from receipt of the decision to appeal to the Administrator of
Program Services or his designee. As Hope received the decision as to his
initial grievance on April 5, 2000, he has far exceeded his time limit to
appeal, and Hope cannot cure the defect in his case.

V. CONCLUSION

For the foregoing reasons, the Court need not reach Defendants'
qualified immunity argument, and the Court GRANTS Defendants' Motion for
Summary Judgment.

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